Photo Credit: Andrey Popov

Even though physicians who conduct limited examinations may only be brought in for their expertise, they retain liability for malpractice or personal injury.

Every doctor knows the basics. As fiduciaries for their patients’ welfare, they are bound by a duty that requires them to diagnose and treat according to the Standard of Care and to keep patients informed of what they need to know about their condition. The duty begins when the physician-patient relationship is formed and continues until it ends. The obligation to fulfill this duty of care underpins liability for medical negligence. Without that duty to the patient, a malpractice claim cannot stand.

But what about when there is a medical interaction between the doctor and an individual without expectation of ongoing care, and perhaps even after the individual has signed a release stating that no therapeutic relationship was formed? Would that wipe away all liability risk?

The most common setting is Independent Medical Examinations (IME) of litigants in personal injury cases and people seeking insurance coverage. Still, this situation can also arise in physicals required to engage in a job, a sport, or to be admitted to a school.

The examinees in those situations typically sign a release that explicitly says that no physician-patient relationship is formed with the examining doctor due to the examination. The doctor is working for and assigned by a third party and may even be working for the examinee’s adversary. By the general rules, there should be no predicate for liability.

However, these are not casual situations in which the doctor is not required to act or to act properly—a doctor doing such examinations is only there for their medical expertise. So, can liability still attach to an examination intended to be limited from the start?

Yes, it can. 

Setting the Case

Let’s examine Bazakos v. Lewis to see how this plays out.

In that case, the defendant’s chosen doctor examined a plaintiff suing over injuries sustained in a car accident. Three years later, the plaintiff sued that doctor for medical negligence, claiming to have been injured by the doctor manipulating his back during that examination. The Statute of Limitations for medical malpractice in New York is 2 ½ years, so the doctor moved to dismiss the case as time-barred and won. The plaintiff appealed, claiming that a medical malpractice action required a physician-patient relationship; however, it was impossible for there to have been such between him and the doctor because he was being forced to be examined by that doctor by his adversary to defeat his claim. He argued that this was not a time-barred malpractice action but was instead a personal injury action, which was still timely. The appellate court restored his case on this basis. The doctor then appealed, and the Court of Appeals dismissed the case, finding that the case was about medical care and the proper claim was one for medical malpractice, carrying the shorter Statute of Limitations.

The Court wrote that “the act on which Bazakos’s lawsuit is based—Lewis’s manipulation of a body part of a person who came to his office for a physical examination—constitutes ‘medical treatment by a licensed physician’ and the negligent performance of that act is not ordinary negligence, but a prototypical act of medical malpractice.”

In other words, what a doctor does in the limited setting of an examination like an IME is no different from care delivered in the ordinary medical setting where a physician-patient relationship applies and is subject to the same liabilities.

But how far does that go? The Court also answered this by quoting a Michigan case: “It is a limited relationship. It does not involve the full panoply of the physician’s typical responsibilities to diagnose and treat the examinee for medical conditions. The IME physician, acting at the behest of a third party, is not liable to the examinee for damages resulting from the conclusions the physician reaches or reports. The limited relationship that we recognize imposes a duty on the IME physician to examine in a manner not to cause physical harm to the examinee.”

Most jurisdictions follow this analysis, aligning with the AMA Ethical Opinion covering IMEs.

The claim in Bazakos was that the doctor caused a physical injury, but what about the more likely situations where the claimed harm is a failure to diagnose or a failure to notify? Limited duty also applies. A release stating that no relationship for ongoing care is formed through the examination does not mean that the doctor is not responsible for diagnosing and informing properly within the examination itself because, as in any medical interaction, it is foreseeable that the examinee will be harmed by a failure to do so.

A problem that doctors doing a limited examination will then be concerned about is handling a positive finding when they have no further contact with the examinee. For example, what if the doctor notices a suspicious mole on an examinee’s back during a lumbar spine examination demanded by the defense firm in a motor vehicle accident case?

The answer takes us back to non-negligence, which requires acting reasonably. It cannot be reasonable to assume that a law firm opposing the examinee will take up the responsibility of letting them know that they may have melanoma, and under those circumstances, a doctor not informing the examinee of a lesion that needs to be checked would be negligent.

This analysis also applies if the examinee is there for a non-adversarial reason, such as insurance, employment, school, or team physicals. A doctor who possesses important knowledge about the examinee and deliberately chooses to say nothing, instead relying on the possibility, for example, that a school administrator or coach will call a child’s parents about a murmur or that an insurance underwriter will tell the examinee the exact reason for coverage being declined would not be acting reasonably under the circumstances. Therefore, a doctor is ethical and legally self-protective when they inform an examinee about a matter that requires more attention and suggest they see their own doctor about it.

A Proper Defense

This is a point at which documentation will matter. In any setting in which an examination report is not going directly to a treating physician (ie, not just a medical director of an insurance company or a medical expert consulting to a law firm), the facts that (1) a matter requiring follow-up was communicated to the examinee, and (2) that they were advised to follow-up with their own doctor, should be in the formal report and a copy kept by the examining doctor. It can also be valuable to keep a personal log. Both can later be evidence because contemporaneous entries kept in the ordinary course of work can come in as Hearsay Rule exceptions.

Specifically stating that the examinee was told to pursue the matter with someone else is critical because it shows that, at that point, the examinee was aware that the examining doctor would have no further role, cutting off a later claim of reliance on the examining doctor for additional work-up or care.

Another question doctors will have is how far the examination has to go if there is an unexpected finding. For example, suppose that in an IME for a lawsuit over an arm fracture incurred by slipping on an uncleared icy step, the examining doctor also notices that the examinee’s nails are clubbed—does that doctor now have to do a cardiopulmonary assessment?

They do not have to do so and, in fact, should not expand the examination beyond its requested limits because doing so can be seen as extending into forming a therapeutic relationship. Instead, the doctor should point out the issue, explain its significance, and tell the examinee that they need to contact their doctor for a complete evaluation.

Finally, in no limited settings is an examining doctor under a duty to order further testing or to follow up with the examinee to ensure they saw their doctor about an issue. The end of the examination ends the limited duty that ran during it.

In summary, If you are functioning as a physician, even in a limited setting, you should assume that a duty that courts will see as inseparable from being a physician can pertain, regardless of what a release says. In the case of a limited examination, this duty will cover non-harm, diagnosis, and notification but will not extend beyond the examination. If an examinee is advised of a need for medical follow-up, this should be documented.